Unbiased writing / Health care ruling by way of example

Discussion in 'The Lounge' started by Steerpike, Dec 13, 2010.

  1. Steerpike

    Steerpike Felis amatus Contributor

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    Actually, that isn't my argument. The Commerce Clause can extend to regulating health insurance policies. I'm talking about the mandate for individuals to buy health insurance policies if they don't care to. I do not believe the Commerce Clause extends to the federal government forcing someone into commerce in the form of buying a health insurance policy. And if merely existing gives the federal government the power under the Commerce Clause to compel you to purchase something, then there is really no limit to the Commerce Clause, and I think you'll admit that and outcome where the Commerce Clause is interpreted to give the Federal Government unlimited license to act doesn't make sense.

    No, if one chooses to buy health insurance and thereby enters that particular area of commerce, then one may be subject to federal regulation on governing details of the policy. But I don't see any basis for saying the Commerce Clause power can compel the individual to purchase the policy and enter that area of Commerce to begin with. I think it is likely the Supreme Court will find that this mandate exceeds the scope of Federal power.

    As for the ripeness argument, the rationale applies in both cases. Ripeness is essentially a public policy doctrine. The countervailing policy behind not waiting until untold millions have been spent in compliance with the health care act before adjudicating outweighs the ripeness doctrine, in my view.
     
  2. EdFromNY

    EdFromNY Hope to improve with age Supporter Contributor

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    But you need to consider the consequence of someone NOT buying health insurance and then becoming seriously ill: assuming they qualify, they end up on Medicaid, which carries a heavier cost to the polity. I don't see anything in the wording of the Commerce Clause that prohibits Congress from making a choice to ultimately have medical services provided at a more reasonably cost to the nation.

    For that matter, Congress could have decided to simply nationalize medicine by removing the income threshhold for Medicaid (I'm not advocating that, BTW, just saying). Faced with the choice between paying high taxes AND health premiums, or only paying high taxes, I'm guessing the new system would have crowded out the private system. The irony here is that Congress chose to extend coverage to the uninsured segment by adapting the existing private-based model.

    I personally think that the reason Congress did that was because of the stormy political environment in which the debate took place. In another time, the debate would have taken longer and would have been more thorough (at least among those who actually were doing the voting).

    As for your prediction of what the Supreme Court will do, you may be right. Time will tell.
     
  3. Steerpike

    Steerpike Felis amatus Contributor

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    It's not a matter of the Commerce Clause not prohibiting, though, it's a matter of whether the Commerce Clause authorizes it, and I think that's a stretch. Of course, the Commerce Clause is stretched beyond all recognition. It was initially intended to allow the federal government to address trade issues between the states (i.e. where the states were parties).

    But it makes for an interesting discussion, doesn't it? You're right - time will tell. Personally, I'd rather have seen the Congress implement a plan to specifically address those who need coverage and can't get it, without upsetting the larger system too much.
     
  4. EdFromNY

    EdFromNY Hope to improve with age Supporter Contributor

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    Indeed it does. I think there are two reasons that Congress didn't simply address the issue of the uninsured. One is that, as a group, they might very well have represented a high-risk pool that would normally require higher premiums, so that the cost of insuring them would be higher than normal, and that's a difficult sell in the current budgetary environment. The other is the current congressional proclivity to load up every piece of legislation with otherwise moribund goodies.
     

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